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The Court overturned a decision by the Board of Immigration Appeals (BIA) that the son of a US citizen father who had waited in line for a green card for many years be forced to leave the US for a decade or more.Margarito Rodriguez Tovar was born in Mexico in 1983.

In 2000, at the age of 17, he entered the US. On April 30, 2001, his father, who was a lawful permanent resident, sponsored him for a green card. In 2005, the USCIS approved the family-based 2A visa petition.
In 2006, his father became a naturalized US citizen. The child’s 2A priority date (minor, unmarried sons/daughters of lawful permanent residents) became current and, in 2008, he filed for adjustment of status under section 245i.
The USCIS denied his application on the ground that he had aged-out and that since the family-based 1st preference (adult unmarried sons/daughters of US citizens) priority dates were backlogged to 1992, his priority date would not become current for more than a decade.
He was placed under removal proceedings where he renewed his application for adjustment of status.

However, both the Immigration Judge and the BIA denied his application and ordered him to leave the US.
The IJ and the Board cited the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011). Zamora-Molina involved a similar fact pattern. The respondent’s LPR mother had originally sponsored her child under the family 2A category, and became naturalized after the child’s 21st birthday. The respondent argued that had the mother not naturalized, he could have utilized CSPA’s “opt-out” provision and used the CSPA age formula to adjust his status under the 2A category. The BIA disagreed and held that since the mother had naturalized, the issue was whether the CSPA age formula applies to “immediate relatives” of US citizens. The section of law in question states that only if the parent naturalizes prior to the child’s turning 21 can the child be considered an immediate relative of a US citizen. The BIA ruled that this referred to the child’s biological age.
In Rodriguez Tovar, the 3-judge panel disagreed with the holding in Zamora-Molina andunanimously held that it would make no sense for Congress to punish a child simply because his sponsoring parent became a US citizen. They determined that the section of CSPA that refers to immediate relatives should be read to refer to a person’s statutory (CSPA) age rather than to his/her biological age.
Applying the CSPA formula, Rodriguez Tovar’s age would be under 21 (24 years when his priority date became current on June 1, 2007 minus the 4 years that the I-130 was pending before the USCIS), and he would be eligible to adjust his status to permanent resident as an immediate relative of a US citizen parent.
The opinion in Rodriguez Tovar succinctly states the rationale for the decision as follows:

"In sum, the government’s position is that because
Rodriguez Tovar’s father became a citizen, Rodriguez Tovar
must now wait decades longer for a visa than if his father had
remained an LPR. In the meantime the government seeks to
deport him to Mexico, with any future return subject to
unforeseeable modifications to the current immigration laws.
As we explain in the remainder of this opinion, the correct
interpretation of the statute does not lead to this absurd result,
but rather to his entitlement to an immediately available visa.

It remains to be seen whether the government will ask the Supreme Court to review this decision.

On November 10, the U.S. Court of Appeals for Ninth Circuit held, in Sazar Dent v. Holder, that a person in removal/deportation proceedings has a right to receive a copy of his administrative file.

The case involves a man born in Honduras who was brought to the U.S. as a child by an American woman, and who was later adopted by her. When the government tried to deport him for a criminal conviction, he argued that he was an American citizen by virtue of his adoption. The Immigration Judge and the BIA both agreed that he had been adopted, but found that he had failed to prove that his adoptive mother was a U.S. citizen by birth.

When he departed and re-entered the U.S., the government charged him criminally for re-entering the U.S. illegally after being ordered deported. However, they dropped the criminal case after it was demonstrated that he was never served with the BIA's order. During these criminal proceedings, he learned that his administrative file ("A-file") contained information about both his adoption and his mother's citizenship status.

Documents present in his A-file which were not given to him included a naturalization application that his adopted mother had submitted on his behalf in 1982, and a copy of an Application to File Petition for Naturalization that he had submitted in 1986. Neither the IJ nor the BIA was aware of these documents when they issued their decisions ordering him removed*from the U.S.

The Court held as follows:

"Dent argues that because he was not provided with the documents in his A-file, he was denied an opportunity to fully and fairly litigate his removal and defensive citizenship claim. We agree."

The Court went on to hold more generally that, under 8 U.S.C. 1229a(c)(2)(B), "Congress has provided that that to meet his burden of proof in removal proceedings, 'the alien shall have access' to his entry document 'and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States."

The Court rejected the government's contention that to obtain a copy of his A-file, a person in removal proceedings is required to file an application under the Freedom of Information Act (FOIA)stating that "aliens in removal proceedings might not get responses to their FOIA requests before they were removed."

Will the government now provide each respondent in removal proceedings with a copy of his or her A-file? We'll believe it only after we see it!

The alien beneficiary must be statutorily eligible for adjustment of status (a waiver must be available for any ground of inadmissibility).

In such cases, the ICE Attorney will ask that the Immigration Judge dismiss the removal proceedings without prejudice to the government requesting that the alien be removed from the United States if his application or petition is denied by the USCIS.

ICE will request that the USCIS rule on the pending petition/application within 30 to 45 days.

The ICE attorney will not request that the case be transferred to the USCIS if "there are any investigations or serious, adverse factors weighing against the dismissal of proceedings. Adverse factors include, but are not limited to, criminal convictions, evidence of fraud or other criminal misconduct, and national security and other public safety considerations."

What would a typical case covered by this memo look like?

Juan, an overstay visitor to the U.S. was placed under removal proceedings by ICE when his wife Julia, a lawful permanent resident, petitioned for him to become a permanent resident of the U.S. The couple has been married for four years, and are the parents of two U.S. children.

Last week, Julia was sworn-in as a U.S. citizen. This makes her husband immediately eligible to become a green card holder. Juan is a construction worker, the family's breadwinner and has no criminal record.

The question is, should the already overburdened Immigration Judges have to decide Juan's application for adjustment of status or should the case be transferred to the USCIS to resolve?

Consider that 200+ Immigration Judges across the country have a backlog of nearly 250,000 pending deportation cases, some of which involve criminals and those who have committed immigration fraud. Coping with over 1,000 cases per year creates huge problems. A legal issue is raised in the case of a person with a drug trafficking conviction, and the Judge is forced to postpone the case and allow the person to remain in the U.S. for a year or more while he reschedules the case for a "merits" hearing. In simple English, the present system does not allow the Judge to focus on the "bad guys".

It is estimated that the August 20th memo will permit up to 17,000 cases to be removed from the Court's backlog and transferred to the USCIS. True, this reduces the backlog by less than ten percent, but it is a step in the right direction.

Of course, with the 2010 midterm elections in full swing, Senator Grassley (R-IN) and various anti-immigration groups call this an example of the Administration's refusal to enforce our immigration laws.

This former INS Trial Attorney (1976-82) calls it "simple common sense".

The concept of separation of powers, and of "checks and balances", is as old as Ancient Greece and the Roman Republic. Our Founding Fathers modeled the U.S. Constitution on principles derived from Enlightenment philosophers like Montesquieu who believed that "the judiciary was generally seen as the most important of powers, independent and unchecked..." He specified that "the independence of the judiciary has to be real, and not apparent merely."

Unfortunately, in a stunning departure from such principles, under a law enacted in 1996, "discretionary" decisions of the USCIS and the BIA cannot be reviewed by the Federal Courts. And because most executive decisions in immigration matters are, by statute, discretionary, the power of immigration enforcement agencies goes largely unchecked.

What is wrong with this? As Lord Acton famously stated, "Power tends to corrupt, and absolute power corrupts absolutely."

Take the case of cancellation of removal of nonpermanent residents. Applicants must demonstrate that their qualifying relatives would suffer "exceptional and extremely unusual hardship" if the applicant had to depart the U.S. In three precedent decisions, the Board of Immigration Appeals (BIA) has only succeeded in confusing most practitioners as to the criteria for satisfying this standard of hardship.

We represent a married couple, citizens of different countries, who have resided in the U.S. for almost 30 years. When they were originally placed in removal proceedings, their two U.S. citizen sons were 11 and 12 years old. One of their sons suffers from ulcerative colitis, and both sons rely totally on their parents for support and are covered under their father's medical insurance.

For years, the government requested and received numerous postponements of the removal proceeding. Finally, the Immigration Judge transferred to another state, and a newly-appointed Judge with no prior immigration experience was assigned to hear the matter. By this time, the boys were 18 and 19 years of age and were both university students.

The Judge ruled that the hardship to the two sons was not "exceptional and extremely unusual" largely because he found that they were now old enough to take care of themselves. As for the son with ulcerative colitis, the Judge ruled that he was not dependent on his father's health insurance since he could apply for public assistance under Medicaid. And the Judge further found that with regard to family separation, the parents could visit their sons in the U.S. whenever they wished. He held that our contention that the parents would be inadmissible from the U.S. for ten years due to unlawful presence had no basis in fact.

The BIA ruled that the Judge was wrong to suggest that the son with ulcerative colitis should apply for Medicaid. The Board also ruled that the Judge's finding that the parents could visit their sons in the U.S. was wrong as a matter of law. In fact, the entire first page of the Board's decision consisted of enumerating the errors made by the Immigration Judge. However, on page two of the decision, the BIA simply and without explanation, affirmed the Judge's decision denying cancellation of removal.

When we sought to challenge this decision in Federal Court, the Court held that it lacked jurisdiction to review a discretionary decision of the BIA.

During the time that the case was pending before the Federal Appeals Court, the oldest son turned 21, and successfully petitioned both his mother and father. The Court Mediator tried to persuade ICE to join us in a motion to reopen the case to allow the father and mother, both of whom had entered the U.S. on nonimmigrant visas, to adjust their status. ICE refused to do so.

Today, only the introduction of a private bill by a Member of Congress prevents the father and mother from being deported.

Had our traditional system of checks and balances been in place, the Federal Appeals Court would have had the opportunity to remand the case to the BIA which may have allowed the parents to remain in the U.S.

On February 2, 2010, a nearly 500-page report entitled "Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases" was submitted to the American Bar Association's Commission on Immigration. One of the recommendations contained in the report is to restore judicial review of discretionary decisions under an abuse-of-discretion standard.

A few weeks ago, I posted a story written by one of our clients, a Registered Nurse from the Philippines employed by a hospital in the U.S., who was stopped and held by CBPofficers as she and her family tried to drive north from their home in El Centro, California near the U.S.-Mexican border to Palm Springs to celebrate her husband's birthday. The entire family had pending applications for adjustment of status, but in a bizarre twist of fate, they were held by the CBP all day and threatened with criminal charges, incarceration and deportation.

Here is the story from my point of view:

Having worked for the INS (1976-82), I always assume that government officers are trying to do their jobs to the best of their ability. However, they have tremendous power over the lives of foreign-born persons residing in the U.S., and this power is not always exercised judiciously.

When I arrived at my office in the morning, one of our legal assistants informed me that a client had left a message for me to call her. It was an emergency.

I immediately returned her call, and learned that she and her family had been stopped at an interior checkpoint on the highway heading north from El Centro to Palm Springs. They were all being held in their own car. The RN and her husband had shown the officers their EAD work permits and their children's passports. The CBP officers told them that it was illegal for them to apply for adjustment of status since they had initially arrived in the U.S. as visitors. Further, since the I-94s in their children's passports had expired, they could be charged with transporting illegal aliens, a criminal offense. At the very least, they were going to be taken into custody and transported to an immigration detention facility to undergo removal proceedings.

In the background, I could hear the loud barking of dogs, and a female CBP officer demanding that my client stop using her cell phone in a "secure area".

This was obviously a huge misunderstanding. I asked my client if she could hand her cell phone to the CBP officer so that I could explain that my clients were legally residing and working in the U.S. However, the CBP officer stated that she did not talk with lawyers, and that my client should terminate the phone call immediately.

Not knowing exactly where my clients were being held, I called a CBP attorney, explained the situation to him, and requested that he intervene to get my clients released. I was shocked when he replied to my request by stating the following: "So your clients have applied for adjustment of status, but their applications are still pending. Therefore, they need to return to their countries and wait for their approvals. They have no right to remain in the U.S."

I figured that I was talking to an attorney who perhaps understood the customs side of the agency, but was completely clueless as to immigration laws and procedures. I patiently explained that persons with pending applications for adjustment of status had the right to remain in the U.S. Why else would USCIS routinely issue such persons work and travel permits? I faxed the I-485filing receipts to the CBP attorney, and asked him to verify what I had told him with the USCIS. He agreed to do so and to call me back within an hour. However, I never heard back from him.

Fast forward to 5pm. After several more phone calls to my clients, I determined where they were being detained. I called the phone number listed on the CBP website, and got a supervisor on the phone. He was very polite and we discussed the situation in a civil manner. He informed me that my clients' EADs had expired, but that they had continued to work in the U.S. He stated that he had no choice but to issue NTAs. I countered that if a person doesn't apply for a new EAD a few months in advance, it is common for the old EAD to expire before the new EAD is issued. However, in those situations, if the person is adjusting status through employment, section 245(k) allows the person to adjust status in the U.S. despite a short period of unauthorized status. Taking such persons into custody and issuing NTAs was a waste of governmental resources since the Immigration Judge would probably terminate proceedings to allow the person to adjust status before the USCIS. However, the supervisor, ever polite, said, "Mr. Shusterman, you may be correct, but we have to do what we have to do, and we will let the Immigration Judge decide what to do with your clients."

I thanked him for speaking with me, and hung up the phone feeling somewhat frustrated. I thumbed through my client's file, and suddenly noticed that we had processed the EAD extensions for her and her husband (We usually advise our clients to do this on their own in order to save attorney's fees.), and that they had been issued new EADs valid until the summer of 2010.

I immediately called the supervisor back, and offered to fax the EAD approvals to him. He sounded somewhat shocked when I told him the news. He said that he would look into the situation immediately, and check my materials against what appeared in the government's computers. This would take at least 45 minutes, and if everything checked out, my clients would be released.

I told him that I was leaving work, and asked if I could call him in 45 minutes from my house. I also provided him with my home phone number. He agreed.

As soon as I returned home, I called the supervisor. However, another CBP officer took my call. He informed me that the needed checks were still being performed. He called me "Carl" rather than "Mr. Shusterman" which I took as a good sign. Then he told me that all the officers at his office were impressed with my work, and that "if he ever needed an attorney, he would call me." I was stunned, and I thanked him. He said to call back around 7 pm since*my clients should be released by then.

I ate dinner with my wife and told her the story. She was born in the Philippines, and is a former INS and Customs officer. She told me that most Customs officers that she worked with knew little or nothing about Immigration laws and procedures.

At 7 pm, I called the CBP but could not get through. I called my client on her cell phone, and she informed me that she and her family had been released. It had been a horrendous day for her and her family, and she agreed to write her story for me to share with readers of my blog and newsletter.

It had been an exhausting day for me as well. I was glad it had a happy ending, but I remain concerned about the next family who might be placed in a similar situation.